Arbitrary,Capricious and Unreasonable.... No Crack Tax allowed in Tennessee

NASHVILLE, Tenn. - Tennessee's tax on illegal drugs is "arbitrary, capricious and unreasonable," an appeals court declared in ruling the "crack tax" was unconstitutional because it derives revenue from illegal activities.

The law allows the state to go after the belongings of people who are caught with illegal drugs or alcohol that don't bear the special tax stamps, regardless of the outcome of their criminal cases.

Critics have argued that defendants acquitted on drug charges can still be forced to pay thousands of dollars or turn over property because the Department of Revenue's burden of proof is lower than it is in criminal cases.

Steven Waters, a carpenter, challenged the statute last year after Revenue agents sought to seize his home after a drug sting. A county judge found the drug tax violated the Fifth Amendment right against self-incrimination.

In the ruling dated Thursday and released Friday, a three-judge Court of Appeals panel unanimously agreed it was unconstitutional, but for a different reason.

"Because it seeks to levy a tax on the privilege to engage in an activity that the Legislature has previously declared to be a crime, not a privilege, we must necessarily conclude that the drug tax is arbitrary, capricious, and unreasonable, and therefore, invalid under the constitution of this state," Judge Sharon G. Lee wrote.

Waters' lawyer predicted the latest ruling would be welcomed in a state with a history of liquor agents raiding moonshiners and busting up stills.

"My impression is that people in Tennessee never liked revenuers, and probably never will," attorney Phil Lomonaco said.

The 2005 state law requires people to buy tax stamps for illegal drugs and liquor, just like the kind wholesalers are required to place on cigarettes to show they've paid the levy.

The illegal drug tax stamps cost $50 per gram of cocaine or $3.50 per gram of marijuana. Last year the state collected $1.8 million of the $43 million it assessed. In 2005, the first full year of the law, Tennessee collected $1.7 million of an assessed $32 million.

Information obtained from the sale of the drug stamps cannot be used in criminal cases, but buying the stamps does not provide immunity from prosecution.